Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD06-00971

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

ex-LCpl, USMC
MD06-00971

Current Discharge and Applicant’s Request:

Application Received:  				20060713
Narrative Reason for Separation:			IN LIEU OF TRIAL BY COURT-MARTIAL
Character of Service:				UNDER OTHER THAN HONORABLE CONDITIONS
Discharge Authority:				MARCORSEPMAN PAR 6419                   
Last Duty Assignment/Command at Discharge:	1^ST MARINE CORP DISTRICT GARDEN CITY NY      

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED     
	Characterization change to:		HONORABLE
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					NONE

Decision:

Date of Decision:					20070517
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES

Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE
 (BCD only) The Board found that clemency was: 	NOT APPLICABLE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Narrative Reason shall remain IN LIEU OF TRIAL BY COURT-MARTIAL.

Summary of Service:

Prior Service:
Inactive: USMCR (DEP)				19980529 - 19981109	COG
Active:        		               		19981110 - 20021003	HON
Period of Service Under Review:
Date of Reenlistment:  				20021004
Years Contracted:  				4;  NO EXTENSION      
Date of Discharge:				20031212
Length of Service:				01  Yrs  02  Mos  08  Days

Does not exclude lost time, if any.

Time Lost During This Period:			1 (per DD 214)
									
Education Level:  				12
Age at this Enlistment:  				23
AFQT:  						43
MOS:						0811
Highest Rate/Rank:				SGT

Fitness reports were available to the board for review for service as E-5/Sergeant or higher:  YES 

Awards and Decorations (as listed on the DD Form 214):                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (2D AWD), MARINE CORPS GOOD CONDUCT MEDAL, CERTIFICATE OF COMMENDATION, MERITORIOUS MAST (5^th AWD), LETTER OF APPRECIATION, RIFLE SHARPSHOOTER BADGE 

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

200307??:	Applicant’s spouse complains to command of inadequate financial support.  Substantiated and corrected by command administrative action.
	[Extracted from Commanding Officer, Recruit Station New Jersey, letter dated 20031021.]  

200308??	Applicant arrested by civil authorities in Tampa, Florida for alleged assault on Ms. C_ A_.  Charge dismissed; however incident revealed to military authorities Applicant’s adulterous relationship with Ms. C_ A_.
	[Extracted from Commanding Officer, Recruit Station New Jersey, letter dated 20031021.]  

20030903:	NJP for violation(s) of UCMJ:
	Article 107:  On or about 030725, did make an official verbal statement to the Commanding Officer, Recruit Station New Jersey, and the Sergeant Major, Recruiting Station New Jersey, regarding the legitimacy of his current marital status, which statement was false and was then known by the said Marine to be so false.  Charge withdrawn (not guilty).
	Article 134 (Adultery):  On or about 030825, did make an official statement to the Sergeant Major, Recruiting Station New Jersey when questioned about his relationship with C_ A_, a woman not his wife, admitting to having sexual intercourse.  Award:  Forfeiture of $951 for 2 months (1 month suspended for 6 months).
   	Not appealed.  

20030923:	Commanding Officer, Marine Corps Recruiting Station New Jersey, ordered Applicant to return to his appointed place of duty and execute his duties as a Marine Corps recruiter.

20030923:	Sergeant Major, Recruiting Station New Jersey, statement witnessing the Applicant’s refusal to recruit.

20031002:	Charge preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 90: Willfully disobey a lawful order from superior commissioned officer.

20031021:	Commanding Officer, Recruiting Station New Jersey letter to Commandant of the Marine Corps, requesting approval of Applicant’s Relief for Cause for refusal to recruit.

20031104:	Commanding Officer, 1^st Marine Corps District endorsing letter to Commandant of the Marine Corps, recommending approval of Applicant’s relief for cause for refusal to recruit.

20031117:	Applicant, having consulted with counsel certified under UCMJ Art 27b, requested admininistrative separation in lieu of trial by court-martial.  Applicant acknowlged that his counsel had fully explained the elements of the offense for which he was charged and that he understood the elements of the offense.  He completely understood that least favorable characterization of service would be under other than honorable conditions.  The Applicant admitted guilt to violation of the UCMJ, Article 92, violation of a lawful order.  

20031209:	Commanding General, Marine Corps Recruit Depot/Eastern Recruiting Region approved Applicant’s relief for cause.

Elements of Discharge  [REQUESTED BY MEMBER]

Date Member Requested Separation:			20031117
Member Requested Separation Due To:			IN LIEU OF TRIAL BY COURT-MARTIAL
Characterization Requested:				NONE
member Recognized Least Favorable:			UNDER OTHER THAN HONORABLE CONDITIONS
Charged with violation of UCMJ:				ARTICLE 90
Acknowledged guilt to violation of UCMJ:			ARTICLE 92

Recommendation of Commanding Officer (date):		APPROVAL (20031126)         
Judge Advocate review (date):				SUFFICIENT IN LAW AND FACT (not dated)
Separation Authority (date):				COMMANDING GENERAL, MCRD/ERD, PISC (20031205)
Narrative reason directed:					IN LIEU OF TRIAL BY COURT-MARTIAL
Characterization of directed:				under other than honorable conditions
Date discharged:						20031212

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				19
	Other Period of Service:				     
       Related to Post-Service Period:
	Community Service:				     
	Education:					     
	Employment:					3
	Health/Medical:					     
	Character Statements:				4
	Criminal Records Checks:				     
	Additional Statements from Applicant:		     
        Other Documentation	 (Describe Below)		     

        Total Number of Pages:				26

       Description of Other Documentation:
            

Applicant’s Issues:
1.  Quality of service
2.  Post Service
3.  Superiors “forced me out of the Corps.”

Decisional Issues:
The Board accepted Issue(s) 1-3 for consideration.  

Issue 1 (Equity).  Quality of Service:  The Applicant claims his record show that his quality of service should outweigh his misconduct.  When a Marine’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under other than honorable conditions discharge is warranted when significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspect’s of the member’s military record.  The Applicant’s service record was marred by failure to provide adequate financial support to his spouse, nonjudicial punishment for violation of  Article 134 (Adultery) of the UCMJ, relief for cause, and an acknowledgement of guilt to violation of Article 92 of the UCMJ in furtherance of his request for separation in lieu of trial by court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his misconduct, and falls below that required of an honorable characterization of service.  Additionally, the Applicant requested a separation in lieu of trial by court-martial knowing the likelihood and the consequences receiving an other than honorable discharge   An upgrade to honorable would be inappropriate.  Relief is therefore denied.

Issue 2 (Equity).  Post Service:  The Applicant states “since leaving the service I’ve attended school and bettered myself, and furthered my education.”  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of the Applicant’s case.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief is denied.  
  
Issue 3 (Propriety).  The Applicant implies that his superiors behaved in some sort of inappropriate manner to “force” him out of the Marine Corps.  There is no evidence in the record to suggest any wrongdoing on the part of anyone other than the Applicant himself.  In addition, it was the Applicant’s voluntary decision to request administrative separation that led to his discharge.  The Applicant acknowledged his understanding of the negative impact that a characterization of service as under other than honorable conditions would have on him, yet voluntarily requested separation rather than attempt to defend himself at court-martial.  Relief denied.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Pertinent Regulation/Law

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 01 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 134 (Adultery).

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

				Secretary of the Navy Council of Review Boards
				Attn:  Naval Discharge Review Board
				720 Kennon Street SE Rm 309
				Washington Navy Yard DC  20374-5023